drive-by lawsuits

April was a busy month for courts confronting ADA lawsuits and some of the news is good for business; at least for business outside the Ninth Circuit. Of the cases we discuss, the two website cases are the most interesting, for they show how website accessibility cases are pointing the way back to a requirement of real rather than merely hypothetical injuries as a prerequisite to filing suit. More

In Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 2017 WL 3401319 (9th Circuit, August 9, 2017) the Ninth Circuit decided once again to make abusive serial ADA litigation as easy as possible, ignoring both the constitutional limits on standing and the way cheap standing† has created a crisis in ADA litigation that Congress is only now beginning to fix.* The plaintiffs in Hospitality Properties Trust never visited the hotels they sued, relying instead on telephone calls in which they were supposedly told the defendant hotels lacked accessible free shuttle services. Beyond alleging the existence of these calls they included boilerplate allegations that they would have stayed at the hotel if there had been shuttle service and that they would visit in the future but were deterred by the ADA violation. This, they claimed, created an injury sufficient for Article III standing. More

The following link is to a story on ABC 15, Arizona concerning the latest developments in the ongoing investigation of abusive ADA litigation in Arizona and New Mexico. Local Judge Orders Release. The article explains the situation in some detail, but the basic news is simple. A private company hired lawyers and plaintiffs to file ADA lawsuits, paying for their services and pocketing what looks like a substantial profit. None of this might have ever come to light except that the number of suits (in the thousands) was astonishing even by ADA serial litigation standards.

For both disabilities advocates and firms like ours that defend ADA lawsuits this kind of report poses a critical question: Is this the norm, or an aberration? When we see dozens or hundreds of ADA suits filed in a short time by a single firm and plaintiff are we seeing a legitimate effort to create an accessible world or exploitation of a law for purely private benefit? More

Sixty Minutes and Forbes have now weighed in on the serial litigation crisis that threatens small businesses sued for often innocent or trivial ADA violations. Congress is gearing up once again to require pre-suit notice, a change demanded by businesses and opposed by disability rights groups. Meanwhile, the pace of ADA filings has only increased, with hyper-aggressive lawyers moving from dozens to hundreds of lawsuits a month, many now concerning web access. Federal judges have responded in some cases with sanctions that amounted in one case to more than $100,000.

How did we get to here? Why has a law to help the disabled turned into a litigation industry? The answer is more complicated than unethical lawyers or profiteering plaintiffs. At the root of the litigation crisis are four things: More

Tens of millions of dollars are wasted each year on litigation under the Americans with Disabilities Act. The money is wasted because instead of going directly to improvements that make businesses more accessible, the money goes to lawyers. Diverting money from remediation to litigation is the real tragedy of so called “drive-by” lawsuits.

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Every couple of years Congress tries to fix this problem with legislation that would require notice before the filing of an ADA lawsuit. There are three such bills pending in the current session. The most sophisticated, the ADA Education and Reform Act of 2015 (H.R. 3765), includes provisions that would help educate businesses about their ADA obligations. This kind of legislative effort has always failed in the past, and there seems little reason to think that the current Congress will be able to do anything this time around.

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When there are a string of local lawsuits state and local government also try get involved, usually with similar efforts to require pre-suit notice. Of course these efforts fail from the outset because the ADA is a federal law and states cannot interfere with its enforcement mechanism.

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Can anything be done? Well, the real problem with the various legislative initiatives is that lawsuits feed on the existence of barriers to access. Plaintiffs’ lawyers I have dealt with tell me that even when they send demand letters more than half are simply ignored by businesses that don’t understand the law or their legal obligations. Given this level of ignorance, and the fact that a plaintiff can easily find 30 or 40 ADA violations just driving around for a weekend, merely requiring a pre-suit demand will do little to reduce the number of lawsuits.

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The ADA Education and Reform Act of 2015 starts to get at this problem with its provisions calling for the development by the DOJ of an education program, but the mandate is not funded, and past efforts by DOJ to educate small businesses have largely failed. Twenty-five years after the passage of the ADA the number of ADA lawsuits continues to climb, which is proof enough that top down education efforts without any funding will never improve ADA compliance or eliminate wasteful litigation.

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What we need instead is work by local chambers of commerce and municipal governments that focuses not on general education but on finding specific common ADA violations so they can be fixed before lawsuits are filed. The best way to do this is to adopt the same tactics used by serial litigants. With minimal training (see our page on Education for Business) police and employees responsible for code enforcement can spot common accessible parking problems. An official notice, even if not accompanied by the threat of a fine, should be enough to get most businesses to look seriously at ADA compliance. Chambers of Commerce can enlist volunteers to do the same thing. Compliance will come from education, but the education will be local, responding to the real needs of local businesses.

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This kind of program does not require any kind of extensive ADA training or survey. The reason lawsuits from serial litigants are sometimes referred to as “drive-by” lawsuits is that the plaintiffs literally just drive around looking for non-compliant handicapped parking. If the parking at a business looks good they probably won’t even stop to see whether the rest of the facility is accessible. A business with parking that meets ADA standards will have eliminated most of the risk of a lawsuit and bought itself time for a proper survey and remediation of the interior of the premises.

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The solution to the waste caused by serial litigation is to eliminate ADA violations, and that can be done most effectively when local governments and local chambers of commerce act directly to find violations and educate business owners about those violations. There is no need to wait for Congress to pass a bill that may be doomed anyway. The answer is local, not legal.